- (b) a document in respect of which, by virtue of section 7, an agency, person or body is exempt from the operation of this Act; or
- (c) an official document of a Minister that contains some matter that does not relate to the affairs of an agency or of a Department of State.
22 It is apparent that the "Mandatory access – general rule" in s 11A(3) applies only to requests that are made in accordance with s 15(2), including the requirement that the document be described in a way that enables it to be identified by the receiving agency or Minister. The rule is otherwise subject not only to the exemptions and conditional exemptions mentioned in s 11A(4) to (6), but to the whole of the FOI Act: see s 11A(2). If a document falls within the statutory definition of an "an exempt document", then access to the document is not required to be given because of s 11A(4): FOI Act, s 31A, item 1. Relevantly, a document is an exempt document if it is a cabinet document, or if it is subject to legal professional privilege: FOI Act, s 34, s 42.
23 Whether a document is exempt for the purposes of Pt IV of the FOI Act depends on the characterisation of the document itself and, in most instances, the characterisation of the information contained in it. The exemptions asserted by Mr Porter for example required the Document to be characterised as one recording or evidencing a communication in respect of which a claim of legal professional privilege could be maintained (s 42), or one that may be characterised as a Cabinet document, having regard inter alia to the reason for which it was brought into existence (s 34). However, a document may also be exempt for reasons unrelated to the content of the information contained in it or the reason for the document coming into existence, including (for example) because it is a document in respect of which an agency or person is exempt from the operation the FOI Act because of s 7.
24 There are numerous additional bases upon which access to a document may be refused, irrespective of the information contained in it. For example, s 24 permits a Minister to refuse to give access to a document subject to a request if a "practical refusal reason" exists in relation to it. The conditions for a "practical refusal reason" to exist are specified in s 24AA. They do not depend upon the content of the requested document, but rather upon the nature of the work involved in processing the request and the extent to which it would unreasonably divert resources, or upon the request not identifying the requested document in accordance with s 15(2)(b). As those provisions show, a request for access may be refused irrespective of whether there might otherwise exist a mandatory obligation to disclose it under s 11A(3).
